Australian court upholds breast cancer gene patent

An appeal to stop gene mutations associated with breast cancer being patented has failed.

Image: Annie Cavanagh/Flickr

The Federal Court of Australia in Sydney ruled on 5 September that gene mutations can be patented. 

Myriad Genetics has succeeded in obtaining exclusive rights to sell and detect a number of mutations in the BRCA1 gene, which can determine the risk of breast and ovarian cancer.

The court ruled that a naturally occurring gene could be patented as long as human intervention had created a significant “artificial state of affairs” by isolating the gene from the human body.

The company filed the patent in 1994 but it was contested by patient advocacy group Cancer Voices Australia. 

The case concluded in February 2014 but the appeal process was only completed last week when Justice John Nicholas ruled that, although the mutated gene was exactly the same inside and outside the body, the artificial context gave the company grounds to patent the gene. 

The five judges on the appeal panel disagreed with Justice Nicholas’ reasoning but upheld his judgment, saying, "The chemical and physical makeup of the isolated nucleic acid renders it not only artificial but also different from its natural counterpart."

This judgment goes against a recent US court decision, which stated that naturally occurring genes could not be patented because they were a “product of nature”. 

The appeal was in response to widespread public concern that patenting gene mutations could prevent the development of life-saving diagnostics and cures.